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Claim Bouldered Over

Austin v Lancaster County Council

Local authorities often have to strike the balance between providing safe and exciting play areas for children as well as protecting the needs of local residents who live nearby. This claim arose after a child was injured after falling on a stone boulder installed to prevent children playing football close to neighbouring houses and parked cars.

The playground in question was built by the developers of the surrounding housing estate, and the responsibility for the park was subsequently passed to the local authority. The local authority received various complaints from local residents over children playing football in the area, and using the trees as goal posts. The defendant considered a number of options to alleviate the issue that had arisen such as signage, a greater PCSO presence, a higher fence and ultimately the boulders were deemed to be the best option. As a result, goal posts were installed away from this area and the play boulders were positioned to discourage children from playing football in the vicinity. The boulders were smooth and round and had safety accreditations. The park was inspected on a regular basis; although the boulders did not form part of the formal inspection.

The claimant who was 10 at the time for the accident was playing football at the park and alleged that as he went to retrieve his ball, he slipped, struck the boulder and fractured his left wrist. The claim was brought pursuant to the Occupiers' Liability Act 1957. The claimant contended that the boulders were unsuitably placed in the park and posed a clear risk of injury. The football nets were located in proximity to the boulders and no risk assessment had been carried out.

Despite the claimant confirming in evidence that he could not be sure if his wrist hit the boulder or the grass, the Judge found that he was nervous and that on the balance of probabilities he was injured when he struck the boulder. Secondly, the Judge considered whether the local authority was negligent and/or in breach of s.2 Occupiers Liability Act. The Court found that the purpose of the boulders was a balancing act of the needs of the residents and the needs of children. The boulders were a reasonable distance from the goal posts. They had been sourced from a reputable company and were not intrinsically dangerous. There had been no previous accidents and the Judge did not consider that they increased the risk faced by children. The case was therefore dismissed.

Forbes comment

Regrettably accidents happen and not every accident can be translated into an entitlement to claim compensation. Playground providers offer an important social and physical resource for children. We welcome the Court's decision in this instance, the Judge understood the purpose behind the placing of the boulders in the park and made a common sense finding that fundamentally the boulder was not dangerous. Risk cannot be completely eliminated from play areas and in any event, teaching children to recognise risk is an important part of development.

To be in a position to defend similar claims, occupiers of playgrounds must ensure that they:

• carry out regular inspections and maintenance checks and keep corresponding records;
• address potential risks immediately;
• carry out risk assessments and keep records;
• record the decision making process when making a decision re new equipment etc;
• ensure play equipment meets legal standards for design and layout;
• ensure the equipment is appropriate for the age group;
• ensure there is adequate signage or warning signs in place where appropriate;
• record and respond to complaints.

For more information contact Elizabeth Bower in our Insurance department via email or phone on 01254 222411. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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